Divorce and Estate Planning

    Stephen King is famous for writing horror stories.  Sometimes though, horror stories write themselves into people's lives.

    Several years ago, I received a call from a distraught father.  His adult son had been in a severe motorcycle accident and was on life support at the hospital.  The father, of course, wanted the doctors to do everything they could to save the son.  There was just one complication.

    The son was married but going through a hotly contested divorce.  His wife had already moved out and moved to California to live with her new boyfriend.  The father had called me as soon as he discovered that the wife had flown back into town to sign documents to take her husband off of life support and to let him die.  While he was still alive, she then flew back "home" to California.

    While the above case is extreme, any lawyer who has practiced family law for a long time has had some circumstance where documents prepared by their client or the other party came into effect when one of the parties either died or became incapacitated.  Just because you are going through a divorce, the law does not change.  The will that you previously drafted or the medical or financial power of attorney that you executed, is still in effect.  For example, if your will provides that all of your property goes to your wife, the fact that you die while a divorce is pending will not change that bequest.  Once the divorce is granted, those documents are either changed or become invalid by law, but not until then. 

    We recommend that all clients execute a new will and new powers of attorney upon initiating a divorce.  Very few of them actually do so and the results of that can be simply disastrous.  This is a risk that you absolutely do not have to take.  If we can help you with issues such as this, please contact the Bob Leonard Law Group at (817) 336-8500 or visit our website.

What if I owe more than my house is worth?

            The headline in a recent issue of the Fort Worth Star Telegram stated that "fewer area homeowners in negative equity".  The article discussed that in the Fort Worth/Arlington area, the number of homes "underwater" had been reduced from 12 percent to 11 percent.  Rather than 45,175 properties having negative equity, only 42,705 properties had negative equity in a recent survey.

            Wait.  What does this have to do with my divorce.  Well it has quite a bit to do with it actually.

            Just a few years ago it was rare for our firm to handle divorces in which a house had no equity.  Generally the fight before was over who got the house or who got the equity from the house or how was it split.  Now, instead of fighting over who gets the house or the proceeds from the house, divorcing couples are having to determine who gets to pay off a debt when there is a house that will not support it.  Even if only 11½ percent of all homes have negative equity, our experience is telling us that a far higher percentage have negative equity in a divorce.  That, of course, is understandable.

            Typically, one party has income to support the debt and the other party does not.  That only complicates the situation.

            At the Bob Leonard Law Group we try to help our clients navigate these treacherous waters.  Sometimes we can arrange for the lender to take a deed in lieu of foreclosure.  Sometimes it is simply better to let the lender foreclose on the property.  Sometimes one of the spouses believes that the market will go up and we work hard to obtain financing or a creative solution to allow that spouse to keep the house even if it is currently in a negative equity status.

            While we cannot take either spouse's name off of the mortgage (that is a contract with the mortgage company and the court has no authority over them), sometimes because of creative financing or some other effort we can help a client to get out from under that burden.  Of course, sometimes the facts are such that that is just impossible.

            If we at the Bob Leonard Law Group can help you to resolve your divorce issues, whether because of negative equity in a house or otherwise, please give us a call at 817‑336‑8500.  Our attorneys are experienced in looking for creative solutions to problems such as this. Let us help.

NEW!!! Alimony Laws

Today, I am starting a series of articles about the new family law statutes in Texas.  After the legislature adjourned last June, and the governor laid down his pen, there were some significant changes in Texas family law.

One of the most far-reaching changes was to the Texas "Spousal Maintenance" (alimony) laws.

Historically, Texas has shied away from any type of alimony.  Unlike other states, in Texas most property acquired during the marriage is community property and therefore subject to division by the court.  If a spouse earned considerably less than the other spouse did, then a court could award a disproportionate division of the community property.  That was thought to be sufficient.

A few years ago, Texas adopted a limited "maintenance" law.  Under the right circumstances (generally having to do with family violence or a case where a divorcing spouse was not able to meet his or her minimal needs, the court could award monthly payments for up to three years.  The maximum monthly payment could be the lesser of 20 percent of gross income or $2,500.  Except for maintenance ordered as a result of family violence, the marriage must have lasted 10 years.

In 2011, this changed dramatically.  The new minimum is the lesser of 20 percent of gross income or $5,000.

The real change is in the time that spousal maintenance could be awarded.  For a marriage that lasts less and 20 years or in which the paying party had committed family violence, the maintenance could last as long as five years.

For a marriage of between 20 years and 30 years, the maintenance could last for seven years.

For a marriage over 30 years, the maintenance could last for 10 years.

The amounts and time periods are up to the court and are not automatic.  In fact, it is difficult to get spousal maintenance in most cases.





There are significant limitations and qualifications to maintenance, so it is imperative to have an attorney who can argue your case.  If we can help you at the Bob Leonard Law Group, please call us for an appointment at (817) 336-8500.

Protect or (Save) Your Case (Continued)

by Bob Leonard, Jr.

            Last week, I discussed ways that you can help your lawyer to represent you and perhaps save your case from failure.  This is a continuation of that article.

            One of the areas that clients usually hurt their attorney's work on the case has to do with their day-to-day cooperation.  Lawsuits have significant and critical deadlines.  For example, if you are served discovery (questions or requests from the other side) you are generally given 30 days to respond.  Failure to respond properly and fully can have significant effects, even to the point of completely destroying your case.  It is not uncommon, however, for an attorney to send these requests to the client with the attorney's own request that the client provide documents and information, and just a few days before the response is due, the attorney is on the phone with the client begging him to get started in providing the necessary help.  Remember, the attorney can argue your case, but you are sometimes exclusively in charge of all of the evidence and knowledge of the case.  Not responding to your attorney properly would be the same as going to the emergency room at a hospital and refusing to tell the doctors where you hurt.

            Another big mistake that non-lawyers make when involved in lawsuits is not being able to keep their mouths shut.  Anything that you discuss with your lawyer is privileged (with a few exceptions).  Your lawyer cannot be required to reveal it in court.  This gives you the freedom to have open and honest communications with your attorney which is critical to his or her representation of you.  Anything that you discuss with your lawyer that you later discuss with someone else is not covered by the privilege.  If you have a conference in your lawyer's office and then go and discuss it with your mother-in-law, your best friend, or even another lawyer, then you have likely waived the privilege.  That means any of the people involved, including your lawyer, could be forced to testify about this matter in court.  Even though you believe that the people that you are talking to will not tell anyone else, it is a hugely common experience in our office for our conversations with clients to come back to us from other sources.  Clearly, someone is not keeping his or her mouth shut.  If the information comes back to us, we can only assume that it might find its way to the other party who can then use the waiver of the attorney/client privilege to ask our client on the witness stand about conversations that the client otherwise would not be forced to reveal.

            Your attorney should discuss all of the above with you at the start of his representation of you.  If he doesn't, bring these matters up yourself. You need for your attorney to have confidence that you are going to act in such a way that helps him to be successful in the case.  While no attorney likes to lose a case, we all recognize that generally one side or the other does not prevail.  If it does not prevail because the facts are not on our side then that is simply the way that the system worked.  If it does not prevail because our client torpedoed his own case, then that means that the attorney did not do an adequate job of controlling his client.  Keep these thoughts in mind and you should increase the chances that you will prevail in your lawsuit.  If you want us to help you do that , then contact one of the attorneys at the Bob Leonard Law Group at www.bobleonard.com or (817) 336-8500.

Protect (or Save) Your Case

By Bob Leonard, Jr.

            This is another in our blog series describing mistakes that lay people (non-lawyers) make in dealing with legal matters.  We hope that these postings are helpful to you.  If you have any suggestions, comments or criticisms of our blog posting we would welcome your comments at info@bobleonard.com.

            This post deals with people who are represented by attorneys in litigation.  These people frequently make mistakes in dealing with their attorneys.  These mistakes often result in increased expenses and possibly lost or damaged cases.  By being aware of these landmines, perhaps you can better protect yourself and help your attorney to do a better job for you.

            Perhaps the most common mistake that people make is simply to not listen to their lawyer.  You hire your lawyer for a reason.  You are paying him or her a significant fee for a reason.  That reason is that your attorney is trained and experienced in dealing with the matter at hand.  Your lawyer has gone to law school, practiced for some number of years (hopefully in the area of law in which he is dealing), and takes a measurable amount of continuing education every year.  In addition, some attorneys become board certified or specialize in an area so much that they become virtual experts in that area.  Your attorney knows the law, the personalities of the opposing party, and perhaps most importantly, the personalities and particularities of the judge.  All of these are things that you cannot achieve on your own.  When your lawyer recommends a certain course of action, it is usually for a reason.  You should think twice before rejecting that advice.

            On a related note, you should work closely with your lawyer in developing the theme and direction of your case.  For some matters, it is very obvious (to the lawyer) what needs to be done.  For example, in a civil lawsuit or criminal case there might be two to five elements of the case that have to be proved in court.  No matter how much you are offended by something else that the other party has done, it may be totally irrelevant to what you have to do in court and, in fact, could get in the way of your attorney being able to present his case on the elements that he absolutely needs to prove.  One of the biggest advantages that an attorney gives you is that he can be objective (hopefully).  In other words, he will not let your emotions concerning the case affect the way that he proceeds to handle your case.  An attorney who simply does what his client wants him to do and not what his client needs him to do is doing a huge disservice to the client.  In fact, if a client insists on following the client's own inclination instead of that of the attorney, a seasoned attorney would most likely either withdraw from the case or, if he has sufficient fortitude, get into the client's face and insist that the client do what is best.

It you want a lawyer who will take your concerns to heart, but who will also insist that you do what is necessary to increase your chances of prevailing, then contact one of our attorneys at www.bobleonard.com.

To Be Continued next week

Save yourself some time and money

By Bob Leonard, Jr.

            This afternoon I had a former client call me.  I had not visited with this client for two to three years. 

            I helped the client get his divorce several years ago and had only heard from him once since soon after the divorce was final.

            My former client had a question about how to interpret the children's possession schedule in his divorce decree.  It was a fairly simple question and the call did not last very long, but during the conversation he said something that started me thinking.

            My client told me that after he remarried, he and his new wife went over his former divorce decree and read it carefully.  He said that he discovered two provisions in the possession schedule that significantly benefited him but he did not know that they had existed.  Although it is my practice to explain possession schedules to my clients, sometimes we do that at a time that they are not ready to pay attention and sometimes we might miss small points.  My client benefited from reading his possession schedule and you can benefit from what he learned.

            Most questions that people ask me after a divorce, having to do with property issues or children's issues, are answered clearly in the divorce decree.  Frequently, clients simply don't read what they already have.

            Save yourself some money and read your decree or other court order thoroughly after you get it.  Do not hesitate to go back every year or so and reread it and familiarize yourself again with the important points.  By doing this you will be able to handle many items yourself without having to consult with an attorney.  Of course, if you are unsure of the interpretation, your attorney should be happy to help you.

Don't Be A Fool

By Bob Leonard, Jr.

There is an old saying that a person who represents himself or herself in court has a fool for a client and a fool for a lawyer.  Much of the time, that refers to lawyers who think that they can adequately represent themselves, but it also applies to non-lawyers.

            This is the second in a series of articles that I am posting concerning mistakes that lay people (non‑lawyers) make in dealing in legal matters.  It is not my intention in these postings to urge everyone to hire a lawyer for every possible legal circumstance.  There are many things that lay people can do for themselves.  This particular post, however, is an exception.  Here I will discuss lay people representing themselves before and during trials and I will discuss things that absolutely should be left in the hands of a lawyer.  In our next post, I will get back to those things that lay people can do and mistakes that they can avoid on their own.

            Even for attorneys, the trial process can be tricky.  To go through a trial, a person must be familiar with most of the hundreds of rules of civil procedure and rules of evidence.

            Judges frequently say that they expect people that are representing themselves (that is people that are appearing "pro se" to be familiar with and follow all of the rules of the court.)  This would include not only those rules of civil procedure and evidence that apply statewide, but also local rules that may apply only to that one court.  In addition, it is common for attorneys to discuss the principle that you should "know your judge."  What that means is that an attorney needs to be familiar with the thinking of every particular judge before whom he or she appears and what they want to see in the way of evidence and what they will tolerate in their courtroom. There is no way that a layperson can get that knowledge; many experienced attorneys struggle with it every day.

            The problem that lay people have representing themselves at trial actually starts well before the trial.  The rules that I mentioned before have deadlines that start to click in months before the actual trial.  If you miss one of those deadlines, you may be unable to obtain evidence that you desperately need to win your case.  Even if you are able to meet all of the deadlines, there are certain processes that you must undertake to make sure that your evidence is admissible in court.  All evidence must be authenticated and the rules for authentication are not only tricky, but they frequently trip up experienced lawyers.  You cannot wait until the eve of trial to have your evidence authenticated; in fact, some evidence virtually cannot be authenticated unless you take certain actions at least two weeks before trial.  Where lawyers focus on the "themes" of the case and what they need to do in order to prevail, lay people are focused on what they perceive is their particular issue which may not be relevant at all.  The detachment and objectivity of a lawyer can help protect his or her client in ways that the client can never understand.

            Once you get to trial, the rules become even more important.  There are certain procedures that you must go through in putting on evidence and taking care of those procedures, frankly, takes experience.  There are objections that you can make to the presentation of evidence if you understand the correct way to make those objections.  If you don't understand that, then evidence might come in against you that is not truly proper.

            Also, if you don't properly preserve the right to appeal each individual point where the court mistakenly ruled, then you cannot win on that point on appeal.  Generally, laypersons representing themselves have the deck stacked enormously against them.  If all of the facts are in their favor and if all of the facts are virtually undisputed, they are able to prevail.  Every attorney has at least one story about where he or she got beat by a pro se party.  The times that that happen, however, are heavily outweighed by those where an attorney beats a pro se party even though the pro se party has the best "story" to tell.  That happens every day.

            There is one exception to all of the above.  Sort of.  That is the small claims courts or the justice of the peace courts.  Those are designed specifically for lay people to represent themselves in small matters, generally those involving less than $10,000.00.  Even there, however, the same rules of the court generally apply and if the lay person doesn't take the right action, then he or she may end up not being able to properly present the case or not being able to appeal it should they lose.

            If your case means anything to you, you should not be handling it yourself.  People that would never think about performing surgery upon himself or herself or having a non‑doctor do so, frequently think that they can represent themselves in legal matters and prevail.  That is almost never true.

Paying Attention Can Protect You

By Bob Leonard, Jr.

            Lawyers frequently see laypeople (non-lawyers) make mistakes that could easily be avoided.  Sometimes these mistakes lead to expensive and heartbreaking results.  This is the first in a series of articles that I will do over the next few months about mistakes that laypeople make in the legal arena.  I hope that you can benefit from these.

            Perhaps the biggest mistake that non-lawyers make is to ignore legal notices.  You may receive a summons that you have been sued.  It is not unusual for you to have only a few days until the first hearing in that matter.  If you were to go and get an attorney to represent you immediately then you would have up to two weeks to find documents and prepare them to make them admissible in court, find and discuss the case with witnesses that will help your case, and generally prepare for your argument in court.  If you wait until a day or two before the hearing, it is possible that none of that can happen on time.  When that happens, you will go to court with no ammunition while your opponent may have been preparing his case for months. 

            Another way that laypeople make the mistake of ignoring what is going on about them, has to do with ignoring correspondence.  As an attorney, I have often sent certified and regular mail to opposing parties who were not represented by attorneys.  It is not unusual that the opposing party refuses to pick up the mail.  If there is a hearing or trial setting, and if I can show that I sent the letter to the correct address and that the other party did not respond to it, then it might be possible for the other party to get a default judgment in that case.  Basically, a default judgment means that I get to write the order any way that I want to.  Losing in court is bad, but losing 100 percent of a case is rarely the result if you show up.

            Another area where laypeople put their heads in the sands like an ostrich and refuse to participate is in cooperating with their attorneys.  An attorney may send the client a questionnaire, discovery answers to reply to, documents to read, or requests for information about witnesses.  It is not unusual for the client to wait until the last possible minute to respond to the attorney, if they do it at all.  That could be incredibly dangerous for the client since, again, the attorney will not be able to adequately represent them. 

            Being on top of your legal situation, responding to all correspondence, and timely responding to your attorney, will protect you from the disaster that could otherwise await you.  Pay attention to your case and you will be far, far better off.